Page 90 - Texas police Association Peace Officer Guide 2017

evaluation comprises obtaining an assault history from the patient, performing a head-to-toe
physical examination, and preparing the patient for a discharge. The medical history is essential
to proper and complete diagnosis and treatment of the patient. Before discharge, the SANE may
recommend to ensure the patient’s future well-being. Though LaFrance stated that the purpose of
an exam is to “ensure the medical well-being” of the patient, a SANE also writes a report that is
turned over to law enforcement and, if necessary, collects evidence.

LaFrance testified that the minor girl described a sexual assault committed by Barker
during such an exam. Barker objected to LaFrance’s testimony and contended that A.M.’s
statements were hearsay, as well as testimonial in nature in violation of the Confrontation
Clause. However, the district court concluded that the statements posed no Confrontation Clause
problem and that they were admissible under Fed. R. Evid. 803(4), a hearsay exception for
statements made for medical diagnosis or treatment. The statement was admitted and Barker
was convicted.

The Sixth Amendment provides in pertinent part: “in all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The
Confrontation Clause requires that the accused be afforded the opportunity to confront those
witnesses who “bear testimony,” defined as “a solemn declaration or affirmation made for the
purpose of establishing or proving some fact,” against him unless the witness is unavailable and
the defendant had a prior opportunity to cross-examine the witness. A statement is “testimonial”
if “the primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.” In evaluating the statements, courts determine “whether,
in light of all the circumstances, viewed objectively, the primary purpose of the conversation was
to create an out-of-court substitute for trial testimony.”

As the Supreme Court recently observed, statements made to non-law enforcement officers, “are
much less likely to be testimonial than statements to law enforcement officers.” This is at least
true as to statements made by “very young children,” which “will rarely, if ever, implicate the
Confrontation Clause.” Because preschool children generally lack an understanding of our
criminal justice system, let alone the nuances of a prosecution, it is highly unlikely that a child
intends his or her statements to substitute for trial testimony.

The primary purpose of the conversation between LaFrance and A.M. was to medically evaluate
and treat the young girl. Moreover, the child’s statements pertaining to the circumstances of the
abuse were relevant to ensuring that A.M. would not be discharged into the custody of a sexual
abuser. [T]his was an ongoing emergency. In short, A.M.’s well-being and health were the
principal focus of this visit to the emergency room. This conclusion is buttressed by the
significant fact of A.M.’s age: four and a half years. Like a three year old boy, A.M. lacked the
understanding of the criminal justice system to intend her comments to function as a substitute
for trial testimony. Moreover, although LaFrance questioned A.M. in a hospital emergency
room, a more formal environment than a preschool lunchroom, the setting is far different from

A Peace Officer’s Guide to Texas Law 85 2017 Edition